State v. Serrano

No. 198               March 27, 2024                    643

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
             JORGE ULISES SERRANO,
                 Defendant-Appellant.
            Washington County Circuit Court
                 18CR81033; A179031

  Ricardo J. Menchaca, Judge.
  Submitted January 25, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
  TOOKEY, P. J.
  Remanded for resentencing; otherwise affirmed.
644                                                     State v. Serrano

            TOOKEY, P. J.
         Defendant appeals convictions after a jury trial for
one count of first-degree sodomy, ORS 163.405 (Count 3), and
one count of first-degree rape, ORS 163.375 (Count 4). The
convictions were based on a pretextual Snapchat conversation between defendant and an investigating officer posing
as the complainant, in which defendant stated that he had
raped and sodomized the complainant after she passed out
due to drug and alcohol use. We affirm defendant’s convictions but remand for resentencing.
         In his first and second assignments of error on
appeal, defendant contends that the state’s evidence
amounted to a confession under ORS 136.425(2), and that
the trial court erred in denying his motion for a judgment
of acquittal, based on the state’s failure to present evidence
corroborating his confessions. The state responds that
defendant’s argument is unpreserved, because he never
cited ORS 136.425(2) or its corroboration requirement to the
trial court, and he failed to alert the trial court either to
(1) the need to make findings on whether the statements at
issue reflected the kind of purpose that would make them a
confession under ORS 136.425(2)1 or (2) the need to assess
whether the state’s evidence met the corroboration requirement. We agree that the arguments raised in the first and
second assignments are not preserved.
         Defendant contends that we should nonetheless
consider them as plain error apparent on the record. ORAP
5.45(1). We reject the contention that the asserted errors are
plain, because it is not obvious or reasonably undisputed
that defendant’s text messages, on which his convictions are
based, constituted confessions, rather than mere admissions
intended to rekindle a relationship with the victim rather
than to acknowledge guilt. State v. J. R. S., 

,

 (2023) (“An error that is not obvious or that is
reasonably in dispute is not a plain error and is therefore
not reviewable by this court.”); see also State v. Manzella,
   1
       ORS 136.425(2) provides:
       “Except as provided in ORS 136.427, a confession alone is not sufficient
   to warrant the conviction of the defendant without some other proof that the
   crime has been committed.”
Nonprecedential Memo Op: 

 (2024)           645

, 

 (1988) (holding that statements
made for some purpose other than to acknowledge guilt,
i.e., exculpatory statements or statements made as part of
a person’s employment duties, are not confessions); State v.
Muzzy, 

, 

 (2003), rev den, 

 (2004) (discussing the distinction between a “confession” and an “admission”). If they were mere admissions
rather than confessions, the corroboration requirement of
ORS 136.425(2) did not apply. We therefore reject the contention that the trial court plainly erred.
         In his third and fourth assignments of error, defendant contends that the trial court plainly erred in failing to
instruct the jury of a need to find that defendant acted with
a “knowing” mental state with respect to the “physical helplessness” element of first-degree sodomy and first-degree
rape. As the state correctly points out, we have previously
rejected that argument in State v. Phelps, 

,

, rev den, 

 (1996), which we recently
adhered to in State v. Woods, 

, 

, rev den, 

 (2022). We therefore reject defendant’s third and fourth assignments.
         In his fifth and sixth assignments of error, defendant contends that the trial court erred in imposing a life
sentence without the possibility of parole. The state concedes
that, in view of the reversal of defendant’s convictions in
State v. Serrano, 

, 

 (2023), adh’d to
as modified on recons, 

, 

 (2023),
and State v. Serrano, 

, 

 (2023),
on which a petition for review is currently pending before
the Supreme Court, defendant will need to be resentenced
in those cases as well as this one. We therefore accept the
state’s concession and remand this case for resentencing.
        Remanded for resentencing; otherwise affirmed.